The Freedom of Information Act: Ensuring Transparency and Accountability in the Digital Age

Testimony for the U.S. Senate Committee on the Judiciary

CAP President and CEO John Podesta testifies before the Senate Committee on the Judiciary.Read the full testimony (CAP Action).

Mr. Chairman, members of this committee, I am pleased to be here during Sunshine Week to talk about the Freedom of Information Act, our bedrock law for ensuring government openness and accountability.

This hearing comes at a momentous time for FOIA. Last week’s Supreme Court ruling narrows the overbroad interpretation of FOIA’s Exemption 2, which allows the federal government to withhold information “related solely to the internal personnel rules and practices of an agency.” Lower court rulings have allowed federal agencies to use this as a catch-all exemption to hide information well beyond personnel matters. Now, thanks to the Court’s 8-1 decision, this is no longer acceptable.

We should celebrate this victory but the last several years show that agency culture and longstanding practice on FOIA are not easily upended, even when confronted with new policy and legal interpretation. Indeed, President Obama has delivered in many respects on his promise to have the most transparent administration in the nation’s history, but the results on FOIA remain disappointing.

That’s not because of FOIA policy—the administration has the right policy. Attorney General Eric Holder’s FOIA memorandum, issued at the president’s direction, gives federal agencies a simple instruction: “In the face of doubt, openness prevails.” And the Office of Management and Budget’s Open Government Directive instructs agencies to reduce significant backlogs of pending FOIA requests by 10 percent each year.

The problem is in the implementation. Federal agencies in the year after the Holder memo increased their use of legal exemptions to keep more records secret, according to the Associated Press. There is also evidence that agencies have reduced backlogs through administrative maneuvers, not by providing requested information. And the Justice Department continues to defend expansive agency interpretations of FOIA exemptions, including in the case that the Supreme Court just overturned.

CAP President and CEO John Podesta testifies before the Senate Committee on the Judiciary.Read the full testimony (CAP Action).